GLEESON CJ GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
SZFDE & ORS APPELLANTS
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR RESPONDENTS
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 2 August 2007 S118/2007
ORDER
1.Appeal allowed with costs.
2.Set aside the orders of the Full Court of the Federal Court of Australia entered on 24 October 2006 and, in their place, order that the appeal to that Court be dismissed with costs.
On appeal from the Federal Court of Australia
Representation
G C Lindsay SC with L J Karp for the appellants (instructed by Legal Aid Commission of New South Wales)
R T Beech-Jones SC with G T Johnson for the first respondent (instructed by DLA Phillips Fox)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
SZFDE v Minister for Immigration and Citizenship
Immigration – Refugees – The Refugee Review Tribunal ("the Tribunal") affirmed a decision refusing the appellants' application for protection visas – The appellants did not attend the Tribunal hearing as a result of fraudulent advice given by a purported registered migration agent – Whether there was fraud "by" or "on" the Tribunal.
Immigration – Refugee Review Tribunal – Inquisitorial process – Distinction between Tribunal process and inter partes litigation – Whether fraud practised by an agent upon the applicants for a protection visa subverted the operation of Div 4 of Pt 7 of the Migration Act 1958 (Cth) – Whether this fraud led to the jurisdiction of the Tribunal remaining constructively unexercised.
Administrative law – Constitutional writs – Mandamus and certiorari – Availability of constitutional writs in cases of fraud.
Words and Phrases – "bad faith", "does not appear", "fraud", "on the decision maker", "third party fraud".
Migration Act 1958 (Cth), Pt 7 Div 4, ss 281, 422B, 425, 426A.
GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ. This is an appeal from a decision of the Full Court of the Federal Court of Australia (Allsop and Graham JJ, French J dissenting)[1]. The Full Court on 3 October 2006 allowed an appeal by the Minister (the first respondent in this Court) against the grant by the Federal Magistrates Court (Scarlett FM)[2] on 20 December 2005 of orders in the nature of certiorari and mandamus in respect of a decision of the Refugee Review Tribunal ("the Tribunal") (the second respondent in this Court). The Tribunal had affirmed the decision of a delegate of the Minister not to grant protection visas to the appellants.
The appellants in order are a wife and husband and their children (born in 1988 and 1989); they are citizens of Lebanon who arrived in Australia on 27 February 2002. The appellant wife claimed a well-founded fear of persecution by reason of her…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
SZFDE v Minister For Immigration and Citizenship [2007] HCA 35
Case
[2007] HCA 35
Decision Date
CaseChat Overview and Summary
The case involved appellants seeking protection visas whose applications were affirmed by the Refugee Review Tribunal. The appellants did not attend the Tribunal hearing due to fraudulent advice from a purported registered migration agent. The central dispute concerned whether this fraud, perpetrated by a third party on the applicants, had the effect of vitiating the Tribunal's decision-making process and whether constitutional writs were available in such circumstances. The matter was heard by the High Court of Australia.
The legal issues before the High Court were whether the fraud practised by the agent upon the applicants subverted the operation of Division 4 of Part 7 of the *Migration Act 1958* (Cth), which outlined the Tribunal's review process and was stated to be an exhaustive statement of the natural justice hearing rule. The Court was required to determine if this fraud led to the Tribunal's jurisdiction remaining constructively unexercised, and if so, whether constitutional writs of mandamus and certiorari were available to address such fraud.
The High Court reasoned that the fraudulent conduct of the agent, which dissuaded the appellants from attending the hearing, stultified the operation of the legislative scheme designed to afford natural justice. The Court found that the agent's actions deprived the invitation to the hearing of its quality as a meaningful invitation under section 425 of the Act. While the fraud was perpetrated by a third party on the applicants, it had the effect of preventing the Tribunal from fulfilling its statutory obligations under Division 4 of Part 7, thereby rendering the Tribunal's decision-making process flawed. The Court concluded that the fraud, by preventing the applicants from participating meaningfully in the review process, meant that the Tribunal's jurisdiction had not been constructively exercised.
The High Court allowed the appeal with costs, setting aside the orders of the Full Court of the Federal Court of Australia and ordering that the appeal to that Court be dismissed with costs.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Federal Court of Australia entered on 24 October 2006 and, in their place, order that the appeal to that Court be dismissed with costs. [Joint judgment of the Full Court]
Background
Background to the litigation
But what of a case such as the present? Here, on the appellants' case, the decision not to appear, whilst consciously made, was the result of the fraudulent conduct of a third party, Mr Hussain, but neither the appellants nor the Tribunal appreciated the situation before the Tribunal made its decision. Before answering the question just posed, some further facts need to be understood.The Facts As noted in the passage in Craig[56] which has been set out earlier in these reasons, in a case of alleged fraud the court exercising judicial review may, subject to any applicable procedural and evidentiary rules, take account of any relevant material placed before it. Further, Mr Hussain is absent from these proceedings, and a finding of fraud is a serious matter. But the identification of the motives of Mr Hussain in acting as he did may be a matter of inference drawn from the available material[57]. In drawing, or failing to draw, such inferences, the Federal Magistrates Court enjoyed no special position precluding a further examination by the Federal Court and, on appeal, this Court. [56](1995) 184 CLR 163 at 175‑176.[57]See the discussion of principle by Lindgren J in Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at 113‑4. The evidence of the first appellant was that when, with her husband, she met Mr Hussain to discuss the Tribunal's letter of invitation dated 27 June 2003 which invited attendance at a hearing of the Tribunal Mr Hussain used words to the effect:"It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment. I am going to take a different approach. I am going to write a letter to the Minister. I am worried that if you go to the [Tribunal] you will say something in contradiction to what I will write. Don't worry. I'm doing what is best for you."A letter to the then Minister, dated 15 September 2003, was composed by Mr Hussain in the name of the second appellant. It was headed "Application for Consideration [under] Section 417 of the Migration Act". Section 417 conferred a power upon the Minister, if the Minister thought it was in the public interest to do so, to substitute for a decision of the Tribunal a decision more favourable to an applicant. This and further requests of this nature were rejected. The Federal Magistrate held that Mr Hussain had acted fraudulently in his dealings with the appellants for personal gain, that he had extracted money under false pretences and that the appellants had been dissuaded from attending the Tribunal hearing "by the fraudulent behaviour of Mr Hussain". The result was to have "deprived the invitation to the hearing [of] its quality of being a meaningful invitation under s 425". In the Full Court French J properly observed[58]:"The finding of fraud should have specified, in one place in the reasons, what was said that was fraudulent, how it was fraudulent, and how it was acted upon. The finding of fact that the magistrate made however was not challenged in these proceedings."[58](2006) 154 FCR 365 at 383.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
CJ, GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
(dissent)
Section 281 relevantly provides:"281(1) Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance.Penalty:Imprisonment for 10 years.....(3)This section does not prohibit:(a)a lawyer from asking for or receiving a fee for giving immigration legal assistance; or(b)a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer.(4)A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1)."The term "lawyer" is so defined as to include a solicitor of the Supreme Court of a State. At the relevant time Mr Hussain was no longer a "lawyer" in this defined sense.Conclusions French J correctly identified the ultimate issue as the effect upon the Tribunal's decision‑making process, for which the Parliament provided in Pt 7 of the Act[62], of the fraud of Mr Hussain.[62](2006) 154 FCR 365 at 399. As indicated earlier in these reasons, the provisions of Pt 7 obliging the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)) and empowering the Tribunal to make a decision on the review in the absence of an appearance (s 426A) are of central importance for the legislative scheme laid out in Div 4 of Pt 7 (ss 422B‑429A) for the conduct of reviews. By s 422B that Division provided that it is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule. The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. That this is so is manifest by the reasons given by the Tribunal, which included the statement:"The [first] applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims. Nor has she given the Tribunal an opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered.The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention." Reference has been made earlier in these reasons to the submission for the Minister that any fraud perpetrated on the appellants was not a fraud "on" the Tribunal. Further, as noted above, Allsop J characterised the complaints of the appellants as not about the process but about their erstwhile agent and concluded that neither the decision nor the statutory process "was corrupted by fraud"[63]. However, as in other areas of legal debate, including questions of federal legislative power under the Constitution itself[64], to say of a law or state of affairs that it bears one legal character does not necessarily deny it a second legal character which is of decisive significance. [63](2006) 154 FCR 365 at 402.[64]Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 at 492 [16].